Buttons like the one above would have been prohibited from polling places under the Minnesota law. Source: Ken Rudin’s Political Junkie.

Tea Partiers in the Land of 10,000 Lakes, as well as those hipsters who like to wear vintage political t-shirts (think “Nixon’s the One!” or “LBJ All the Way!”) on election day scored a big victory at the Supreme Court last week.  In a 7-2 decision, the Court held that a Minnesota law prohibiting individuals from wearing or displaying certain types of political attire was unconstitutional under the First Amendment.  The Minnesota law in question also prohibited displays of campaign materials within 100 feet of a polling place and the distribution of political materials to be worn at a polling place.

The law was challenged by a Tea Party group, and was upheld by lower courts.

Applying the public forum doctrine, the Supreme Court found in Minnesota Voters Alliance v. Mansky that the interior of a polling place constitutes a nonpublic forum.  In a nonpublic forum, speech regulations must be viewpoint neutral and reasonable in light of the purposes of the forum.  While the Court observed that Minnesota could constitutionally prohibit political attire, buttons, and other paraphernalia from the interior of a polling place, it found that the law in question failed the reasonableness standard.  The Court noted, for example, that the statute failed to define the term “political,” such that voters and those enforcing the law had no standards by which to determine what attire would pass muster.  While local polling places had been issued some guidance on the issue, the Court found that the guidance similarly lacked clarity regarding what constituted political speech.  The Court observed that other states, including California and Texas, had much clearer laws that narrowed the class of prohibited speech to that which advocates for or against a candidate or ballot measure appearing on the ballot.

Justice Sotomayor, joined by Justice Breyer, dissented.  She argued that the statute in question should have been certified to the Minnesota Supreme Court for a definitive interpretation of the ban.

Observers have questioned whether the Court’s decision upsets the precedent established in the 1992 case of Burson v. Freeman.  There, in a plurality decision, the Supreme Court upheld a prohibition on the display of political messages within 100 feet of a polling station.  The Court reasoned that, although the ban applied to a traditional public forum, it satisfied strict scrutiny because the government has a compelling interest in ensuring free and fair elections, and the restriction was the least restrictive means of achieving that interest.  The outcome of Minnesota Voters Alliance does not reverse Burson, however, and appears to deal with a more limited issue pertaining to poorly-defined terms in the Minnesota statute.

For now, Minnesotans, break out your Make American Great Again, Walter Mondale, or whatever other t-shirts you want to wear on election day!

Minnesota Voters Alliance v. Mansky, ___ S. Ct. ___, 2018 WL 2973746 (U.S. Jun. 14, 2018).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.